The Basics of Getting Permission

This section outlines the basic steps for obtaining permission. Subsequent sections provide more detailed information about this process for each type of permission you may be seeking, whether for text, photographs, music, or artwork.

In general, the permissions process involves a simple five-step procedure:

Determine if permission is needed

The first step in every permission situation is to determine whether you need to ask for permission. In other words, do you need an agreement or can you use the work without permission? Determining whether to ask for permission depends on two questions:

Is the material protected under the law?

Would your use of the material violate the law?

Unfortunately, it is not always possible to answer these questions with a definitive “yes” or “no.” Sometimes, you may have to analyze the risk involved in operating without permission. Below are some basic legal principles you’ll need to know. Subsequent sections explore these principles in more depth.

Is the Material Protected Under Intellectual Property Law?

You should always start with the presumption that, if the creative work you want to use was first published after 1923, U.S. copyright law protects it. There are only two ways that a work published after 1923 is not protected: Either the owner of the work made a mistake (such as failing to renew the copyright), or the work does not meet the minimum standards for copyright protection. Later sections on the permission rules for particular types of creative works provide guidelines to determine if the work you intend to use is protected.

A work that isn’t protected by intellectual property laws is in the public domain and can be used without asking for permission. Most works that fall into the public domain do so because of old age. Public domain status may also be due to other reasons discussed in the section on the public domain.

EXAMPLE

Bill wants to include his recording of the song “Give My Regards to Broadway” on his website. Because the song was first published in 1904, it is in the public domain, and Bill can use it without obtaining permission.

Would Your Use of the Material Constitute a Violation of Law?

If a creative work is protected under intellectual property laws, your unauthorized use may still be legal. This is because there are exceptions to each of the laws protecting creative work—situations in which authorization is not required. For example, under copyright law, a principle known as “fair use” permits you to copy small portions of a work for certain purposes such as scholarship or commentary. Under the fair use doctrine, you could reproduce a few lines of a song lyric in a music review without getting permission from the songwriter (or whoever owns the copyright in the song). See the section on fair use for more details.

What is the Risk of Not Asking for Permission?

Our goal is to minimize your risk of being sued. The risk of being sued depends on not only your particular use, but on factors such as the likelihood that the use will be spotted, whether you are a “worthy” target for litigation, or whether the other side is inclined to sue.

We recommend a conservative approach. Unless you are certain that the material is in the public domain or that your use is legally excusable, seeking permission is worth your time. If you are not sure, you’ll have to either make your risk assessment or obtain the advice of an attorney knowledgeable in copyright or media law.

EXAMPLE

I wanted to use the lyrics from the song “From the Indies to the Andes in His Undies.”

From the Indies to the Andes, what a mission
Stopping only now and then to do some fishing
And he went without a copyright permission
What a very daring thing to do.

I located information about the writers of the song from a compilation recording of country music. Then, I located the name of the publisher (Rialto Music, Inc.) from the American Society of Composers, Authors, and Publishers (ASCAP), which informed me that the owner had ended its affiliation with the organization in 1975. I searched online to no avail for the songwriters and Rialto Music. I also checked the online Library of Congress records but found no reference, either because the song was never registered or the song was written before the date their online computer records began. I contacted the Harry Fox Agency, another agency that controls rights, which gave me a reference for Rialto in Providence, Rhode Island. I tried using operator assistance but could find no listing. I decided to proceed without permission because my limited use of the lyrics (four lines) for purposes of commentary, combined with my good-faith attempt to find the owner, probably qualifies as a fair use.

Dear Rich: I am a romance novelist, and occasionally I borrow material from other books for my historical romances. I’m confused about the difference between plagiarism and infringement.

A plagiarist is a person who poses as the originator of words he did not write, ideas he did not conceive, or facts he did not discover. “Plagiarism” is not a legal term; it’s an ethical term. You can plagiarize someone without infringing. For example, if a plagiarist only copies public domain materials, he can’t be sued for copyright infringement. And you can infringe without plagiarizing. For example, this whole answer is pretty much lifted from Stephen Fishman’s Nolo book, The Public Domain. (See … I’ve provided attribution; let’s hope he doesn’t sue— :-).) Which is worse? A whiff of plagiarism can damage a romance novelist’s reputation, while infringement means dealing with lawyers and hefty judgments.

Identify the Owner

Identifying the owner of the work you want to use is crucial to obtaining permission. Sometimes, this task is simple. Often, you may be able to locate the rights owner just by looking at the copyright notice on the work. For example, if the notice reads “Copyright 1998, Jones Publishing,” you would start by finding the Jones Publishing company. Sometimes, more detailed research is required. Copyright ownership may have passed through several hands since your copy of the work was published.

In addition, some kinds of art, such as film and recorded music, can involve multiple owners, each with a separate right to different underlying works. For example, in order to use a Johnny Cash recording, you would have to obtain permission from the record company, the music publisher (the owner of the song), and, in some cases, from Mr. Cash’s estate.

You’ll find that the method of identifying owners differs from industry to industry. For example, photographic reproduction rights are often owned by stock photo organizations, while many music performance rights are owned by performing rights societies. Subsequent sections on the permission rules for particular types of creative works will advise you on how to locate owners.

Identify the Rights You Need

The next step in getting permission is to identify the rights you need. Each copyright owner controls a bundle of rights related to the work, including the right to reproduce, distribute, and modify the work. Because so many rights are associated with copyrighted works, you must specify the rights you need. This can be as simple as stating your intended use—for example, you want to reproduce a photograph in your magazine or display a cartoon in your PowerPoint presentation.

Asking for the proper rights can be a balancing act. You don’t want to pay for more than you need, but you don’t want to have to return for a second round of permissions. Sometimes this requires negotiating with the rights owner to find a middle ground for fees.

Besides identifying the type of intended use, you’ll need to figure out some other details of your use of the material. Specifically, your permissions agreement will need to deal with three common variables: exclusivity, term, and territory.

Exclusive or Nonexclusive

All permission agreements are either exclusive or nonexclusive. A permission agreement is exclusive if you are the only person who has the right to use the work as described in the agreement. For example, if you enter into an agreement with the owner of a photograph for the exclusive use of the photo­graph in a cookbook, no one else could use the photograph in another cook­book. Exclusivity can be as narrow or as broad as you choose. For example, you could expand the exclusivity of your permission agreement by obtaining the exclusive right to print the photo in any book, not just any cookbook.

Most permission requests are nonexclusive, meaning others can use the material in the same way as you. For example, if you have a nonexclusive agreement to use a photo in your cookbook, the same photo could be used in someone else’s cookbook (provided permission was granted). The permission agreements included throughout this book offer you the option to choose exclusive or nonexclusive rights.

Term of Use

The length of time for which you are allowed to use a work is often referred to as the “term.” Your rights under a permission agreement will often be limited in duration. For example, if you are licensing the right to display a photograph on a website, the copyright owner may limit the length of your use to one year. Alternatively, you might obtain what’s called a “one-time use,” meaning you can only use the material in one edition of a magazine, not in subsequent editions. If there is no express limitation on the use, you are allowed to use the material for as long as you want or until the copyright owner revokes the permission. Some agreements prohibit the copyright owner from revoking rights by granting permission “irrevocably.” Sometimes an agreement states that it is “in perpetuity,” which means that rights are granted without time limits. In reality, the copyright owner can only grant permission for as long as the owner’s copyright protection lasts. After that, anyone can use the material without permission.

Territory

Your rights under a permission agreement may be limited to a geographic region, referred to as the “territory.” For example, the copyright owner of a book may permit you to reprint a chapter only in the U.S. and Canada.

Plan Ahead for Permission

Expect getting permission to take anywhere from one to three months. Permission should be obtained before you complete your work. It is sometimes more difficult and more expensive to obtain permission after a book, film, or recording is complete. If the copyright owner becomes aware that you have a vested interest in obtaining permission (for example, your book is already in production), the price may rise. Also, if you can’t obtain permission, you’ll have to redo the work, which is expensive and time-consuming. The best policy is to start seeking all required permissions as soon as possible.

Negotiate Whether Payment Is Required

The primary issue that arises when seeking permission is whether you will have to pay for the permission you seek. Sometimes, the owner of the work will not require payment if the amount you wish to use is small, or if the owner wishes to contribute to an educational or nonprofit effort. In some cases, an artist or musician eager for exposure may agree to suspend payment unless the work becomes profitable, or may condition payment on other factors.

EXAMPLE

Sam is making a low-budget documentary film in which he wants to include photographs of vintage accordions. He contacts the copyright owner of the photographs who, in return for a credit at the end of the film, signs an agreement allowing use of the photographs in the film. However, the agreement also provides that, if Sam uses the photographs in a poster or advertisement for the film, he must make an additional one-time payment of $1,500.

Although many uses of works may be free, you should usually expect to pay something—even a minimal fee—for copyright permission. For example, the evolving world of stock photos has made it possible to get some photo permissions for around $5. Or it could be a fairly hefty payment. For example, using a song in a commercial usually requires a payment of several thousand dollars.

What If You Hire Someone to Create a Work?

Most of the situations described in this book deal with obtaining permission to use an existing work. However, it’s possible that you may hire an artist or another creative person to create the work for you. If the creative person qualifies as your employee, you will automatically own all rights to the work he or she creates on your behalf, and no permission is required. The Supreme Court has established standards for determining whether a creative person is an employee. These standards include factors such as whether the person is given weekly or monthly payments (instead of being paid by the job), whether you withhold employee taxes for the person, and whether the person receives employee benefits.

If the person creating the work is not an employee, he or she is an independent contractor. In this event, your ownership of the person’s work is not automatic. To guarantee your ownership of an independent contractor’s work, you should use either a work-for-hire agreement (if your commission meets the requirements) or an assignment.

Generally, permission fees are linked to the size of the audience your work will reach. A large metropolitan newspaper will have to pay more to use a photograph than a small-town newspaper. Commercial uses, such as advertisements, cost more than nonprofit or educational uses. The fees for website uses may depend upon the number of visitors to the site.

Dear Rich: I’m having a dispute with a company for which I granted permission to use an image. The contract says that they owe me $350. They claim I didn’t do the photos the way they wanted. Then, they sent me a check for $250 that says “Payment in full for photo rights.” Is it true that if I crossed out the “payment in full” and wrote “under protest,” I could deposit the check and still go after the other $100?

Court rulings are not always consistent on this, but the majority of courts say that if there is a dispute as to what is owed, and the party receiving the check knows that it’s intended as “payment in full,” depositing the check ends the dispute (known as “accord and satisfaction”). The rule doesn’t apply if there is no dispute (in which case the “payment in full” is meaningless) or if the dispute is not “honest”—for example, one party deceives the other, making it difficult to figure out what’s owed. Finally, if there is a dispute but the check is cashed inadvertently, the rule may not apply (courts are split on that issue). If you have deposited the check and wish that you hadn’t, the Dear Rich Staff advises that most state statutes give you 90 days to repay the check and get back into the dispute. Check your state’s Uniform Commercial Code (UCC Section 3-311).

Get It in Writing

Relying on an oral agreement or understanding is almost always a mistake. You and the rights owner may have misunderstood each other or remembered the terms of your agreement differently. This can lead to disputes. If you have to go to court to enforce your unwritten agreement, you’ll have difficulty proving exactly what the terms are. Get written permission agreements—do not rely on oral agreements.

That said, oral permission may be legally enforceable if it qualifies as a contract under general contract law principles. Moreover, even if you have no explicit oral agreement, you may still have a right to use a work if permission can be inferred from the conduct of the parties.

EXAMPLE

Sam is writing a book and asks for permission to reproduce Tom’s photo. Tom quotes Sam a fee of $100, which Sam sends to Tom. After receiving the payment, Tom sends the photograph to Sam. Although they never put an agreement into writing, a permission agreement may be inferred from Tom’s conduct.

Secondary Content

On January 28, 2014, Stanford’s Program in Law, Science & Technology hosted the discussion, “Congratulations, you have an app – now what? App Development and Marketing from A-Z.” The discussion featured a panel of high level, experienced practitioner who provide tips, checklists and a road map for addressing legal considerations relating to mobile apps, including best practices for mobile TOU and Privacy Policies, platform considerations and much more.